the cattel Mich. 23. Car. B. r. For one shall not be made a Trespassor against his will If a person or goods be rescued out of the hands of the Sheriff which he hath taken in Execution by vertue of his Office it is at his election to bring an Action upon the Case or an Action of Trespass vi armis against him that made the rescous Hill 23. Car. B. r. If one bring a meer Action upon the Case he may declare omitting the words vi armis but if the Action be a bare Action of Trespass there he must declare that the Trespass was committed vi armis Mich. 24. Car. B. r. For an Action of Trespass doth implye a breach of the peace and a capiatur is to be entred in the Judgement against the Trespassor for his fine to the King but in an Action upon the Case it is otherwise for there the Judgement is that the Defendant shall pay the dammages and be in misericordia Trespasses of several natures cannot be laid together in one Action Mich. 24. Car. B. r. Upon a recovery of Lands in an Action of Treft pass and Ejectment the Plaintiff may afterwards bring an Action of Trespass against the Defendant for the mean profits of the Land So it was held in the case between Wilmot and Holden Trin 1652. B. S. The mean profits are such profits of the Land as did grow due betwixt the time of the bringing of the Action and the time of the recovery An Action doth lye at the Common Law for the person for taking away of Tithes after they are severed from the Land Mich. 24. Car. B. r. To wit against the occupyer of the Land Q. tamen Tales Upon a Tryal at the Bar if the Jury do not appear full the Court cannot grant a Tales de circumstantibus but the Court upon a motion will grant a Tales returnable in some convenient time the same Term to try the cause Mich. 22. Car. B. r. 1650. B. r. For the Statute doth not extend to tryals at the Bar which did enable the making of a Tales A Tales de circumstantibus are so many persons which are returned to serve on Juries to supply the places of those that did not appear A Corporation Court cannot grant a Tales Pasc 23. Car. B. r. For the Statute doth not extend unto Corporations A Tales is not to be granted where the whole array or Jury is challenged for want of Hundreders but in such case the whole pannel if the challenge be made good is to be quashed and a new Jury is to be returned Mich. 1650. B. S. For a Tales consists but of some persons to supply the places of such of the Jurors as wanted of the number of twelve and is not to make a new Jury If the Sheriff take Bail of one for his appearance who is not Bailable by Law although the party do not appear an Action doth not lye against the Sheriff but the Plaintiff must proceed against the Sheriff by way of amercements Mich. 1650. B. S. 26. Nov. For in regard that the Sheriff ought not to have taken Bail though he have taken it yet it shall be accounted as if he had not taken Bail Terms The Issue Terms are Hillary Term and Trinity Term onely the other two Terms are not so called and the other Issue Terms are so called because in them are the Issues joyned and made up which are to be tryed at the Lent Assizes and the Summer Assizes which do immediately and respectively follow them Hill 22. Car. B. r. The four dayes in Term are the day of 1. Essoigne 2. Exception 3. Appearance 4. Return Hill 22. Car. B. r. All the Term in construction of Law is accounted but one day and therefore a Plea that is put in the last day of a Term is a Plea of the first day of the Term. Trin. 23. Car. B. r. Mich. 1649. B. S. The Term is said to begin upon the first Essoign day which is three dayes before the Courts of Justice do sit and not at the first day of sitting of the Courts Trin. 24. Car. B. r. Because some businesses of that Term do begin at that time The same day of the week that Michaelmas Term doth end the same day Hillary Term doth begin By Woodward Clerk of the Court Hill 24. Car. B. r. Toft and Croft A Toft is a place where an old house did formerly stand and it also signifies a decayed house not inhabited Pasc 23. Car. B. r. A Croft is a small peices or close of Land that lyes neer a dwelling house Pasc 23. Car. B. r. Trover and Conversion Where the Trover of goods is one County and the Conversion is in another County the Action brought for these goods may be laid in the County where the Conversion was for the Conversion of the goods is part of the cause of the Action Pasc 23. Car. B. r. For the very name of the Action is called a Trover and Conversion and not a Trover onely and the Action is brought as well for the Defendants converting of the goods to his own use as for the finding and deteyning of them Two causes of Action for a Trover and a Conversion cannot be joyned in one Action Trin. 23. Car. B. r. An Action of Trover and Conversion may be brought for goods although the goods for which the Action is brought do come into the possession of the Plaintiff that brings the Action before the Action brought Pasc 1651. 22. Ap. B. S. For the coming of the goods into his possession before the bringing of the Action for them doth not purge the wrong or make satisfaction for that which was done to the Plaintiff by the finding and converting the goods and so he hath still cause of Action although his dammages may not be very great Trust The Chancery will compell one to perform a Trust which he hath taken upon him except it be a Trust taken upon him for the benefit of an Alien Pasc 23. Car. B. r. For to compell that might in many cases prove prejudicial to the Common Wealth and repugnant to the Common Law The way of making conveyances by way of Trust was invented to evade the Statute of uses Pasc 23. Car. B. r. Cestuy que trust cannot take the profits of the Land setled by the Trust but hath onely his remedy for them in equity for the estate in the Land is onely in the party that hath the Trust Trin. 23. Car. B. r. Tenure Lands which are granted by the King to hold of him of his Manor of East Greenwitch in Kent in capite is a Tenure in Sorage and the words in capite in the grant are voide Trin. 23. Car. B. r. For those words are repugnant to the Tenure created by the grant Tender A Tender of Rent to save the forfeiture of a Lease ought to be a Tender of the whole Rent due at the time of the Tender without any deduction of Taxes of
Mich. 23. Car. B. r. But Q Whether they will grant it because by the Writ of Error their hands are foreclosed but now by the late Act a Writ of Error is no Supersedeas and so the Law in this point is altered In a Judgement given for the Plaintiff to recover a sum of money the sum must not be written in figures for if it be it is error but it must be expressed in words at length Mich. 23. Car. B. r. For a Judgement consists in words and words are made of letters and not of figures which can spell nothing If a Judgement be given upon an Issue tryed in a cause wherein there is also matter of Law in dispute upon another Issue in that cause before the matter in Law be determined yet the Judgement is good Hill 23. Car. B. r. Upon the Affirmance by the Parliament of a Judgment given in this Court and removed by a Writ of Error brought in Parliament to reverse this Judgement the Parliament useth to have a Remittitur entred upon the Judgement Roll to send it back into this Court that this Court may award Execution upon the Judgement Hill 23. Car. B. r. For Execution ought alwayes to Issue out of that Court where the Judgement was given If a prisoner which is Endicted for Felony will not plead to the Endictment he is by the Law to be pressed but if a prisoner endicted for Treason will not plead at all to the Endictment or answers impertinently and not to the purpose judgement shall be given against him as if he were found guilty Pasc 23. Car. B. r. In Sir John Stowels Case as I remember If there be not four dayes of a Term to come after a Postea is returned in Court before the Term be ended so that the Defendant cannot have four dayes liberty to speak in Arrest of Judgement as by the course of the Court he ought to have there ought not to be any Judgement given in the cause untill the next Term after that the Defendant may have so much time to speak in Arrest of Judgement as he ought to have Pasc 24. Car. B. r. If a Judgement be but seven years old the party may by the course of the Court have a Scire facias to revive it without moving of the Court for it and if the Judgement be under ten years old the party may move for a Scire facias to revive it at the side Bar but if it be ten years old or more a Scire facias to revive it must be moved for in Court Pasc 24. Car. B. r. One may speak in Arrest of a Judgement given upon a nihil dicit at any time during the same Term that the Judgement was obtained Pasc 24. Car. B. r. For the Defendant is more favoured in a judgement given against him upon a nihil dicit then where a Judgement is given against him upon a Verdict because in the former Case he makes no defence but in the latter case it is intended he hath made his full defence Where one entire Judgement is given against two several persons and one of them is an Infant the whole Judgement is void Trin. 24. Car. B. r. For it being void to the Infant and being an entire Judgement which cannot be divided it must necessarily be void as to the other and so void in toto If a peremptory rule be given for the Defendant to plead at a certain day if he do not plead accordingly the Plaintiff may enter Judgement against him without any further moving of the Court Trin. 24. Car. B. r. For it was the favour of the Court to give him that day to plead and if he make no good use of it it is his own fault and the Court will not further delay the Plaintiff If the Plaintiff do demur to the Defendants Plea and the Defendant do joyn in the demurrer if the Plaintiff will not maintain the demurrer Judgement shall be given against him Trin 24. Car. B. r. For thereby it is implyed that he confesseth the Defendants Plea to be good and consequently that he hath no cause of Action That which a Judge of this Court doth act in his Chamber as a Judge of this Court is accounted to be done in Court Trin. 24. Car. B. r. For it is in order to the proceedings in the Court Q. Where a Judgment is entire it cannot be reversed in part and stand good as to another part but if it be not an entire Judgement it may Trin 24. Car. B. r. For an entire Judgment cannot be divided to make one part of it good and another part of it to be erroneous If the Plaintiff do give the Defendant two rules for him to plead according to the course of the Court and the Defendant do not plead when the time of those two rules are out the Plaintiff may enter a Judgement against him upon a nihil dicit but not before Mich. 1644. B. r. If a man bring an Action of Debt against two Executors and they plead they have not Assetts and thereupon Issue is joyned and it is found that one of the Executors had Assetts at the time of the Action brought but that the other Executor had not Assetts the Plaintiff shall have Judgement to recover the Debt against that Executor who was found to have Assetts and a nil Capiat per billam shall be entred against the Plaintiff as to the other Executor who was found to have no Assetts Mich. 24. Car. B. r For the possession that one Executor hath of the Testators goods is not the possession of the other Executor It is against the course of practice in this Court to admit the principal to acknowledge a Judgement for his Bail but in the Common Pleas they use to admit it Mich. 1649. B. S. But it is said that the Common Pleas will not admit it now since the rules of regulation made If in an Action of Trespass and Ejectment brought to try the title of the Land the owner of the Land whose title is concerned will not save the party that is made Ejector harmeless from all prejudice that may befall him by reason of the Suite he may confess Judgement unto the Plaintiff for the Land in question Mich. 1650. B. S. For to avoid further trouble and charge by reason of the suite which concerns him not either in gaine or loss If a Judgement is given which is not warranted by the Verdict upon which it is given that Judgement is not good Mich. 1649. B. S. If a Judgement given in an inferior Court be not according to the ancient form of Judgements given there such Judgement is erroneous and this Court will reverse it upon a Writ of Error brought Pasc 1650. 24. Maii. B. S. If an Action of Trespass or Trover and Conversion be brought for divers several things and the Verdict doth finde that the Defendant had but some of the things for which the Action was brought yet the
for want of a Plea Hill 1650. B. S. 5. Feb. But if it be a special Plea there must he a Counsellors hand set unto it If one be sued by original Writ he must Plead the same Term in which the original is returned Hill 1650. B. S. 6. Feb. If one be compelled to alleadge double matter in his Plea yet if he do insist but upon one of them the Plea is not double Trin. 1651. B. S. For upon that matter onely upon which it is insisted upon shall issue be joyned If the Plaintiffs Atturney will consent unto it the Defendant may waive his Plea without moving the Court. By Rolle Chief Justice Trin. 1651. B. r. But if he will not consent it cannot be done without moving the Court. A special Plea is a Plea although it have not a Counsellors hand set to it and therefore Judgement cannot be entred for want of a Plea although a Councellors hand be not to it without acquainting the Secondary of the Office and obtaining his leave to do it for it may be there was no cause for a special Plea and the Plaintiff must not be his own Judge Mich. 1651. B. S. Per Rolle Chief Justice The Prayer of the priviledge of the Court is not properly a Plea for it was anciently demanded by Writ although it be now usually allowed upon the Prayer of the party who claimes it By Latch Apprentice in the Law If a Declaration be delivered to the Defendants Atturney or put into the Office after the Essoigne day of the Term the Defendant cannot be compelled to Plead that Term but he may Emparle till the next Term. 1652. B. S. For the Term was begun when the Declaration was delivered and so it cannot be accounted a Declaration of the proceeding Term. Pardon He that will take the benefit of a general Pardon ought to plead the Statute by which the general Pardon was granted 21. Car. B. r. 8. Ed. 4. 7. 4. H. 7. 8. That the Court may judge whether his offence be Pardoned or not One that is found guilty of man-slaughter must sue out his Pardon or else his burning in the hand cannot be dispensed withall for man-slaughter is Felony 23. Car. B. r. Penalty This Court will not give the Penalty of an Obligation to the Obligee which was onely made to perform the Covenants of an Indenture 21. Car. B. r. Because the party may recover upon the Covenants of the Indenture whatsoever he can be damnisied by the breach of them and the Bond was given for no other intent but to tye the Obligee to perform the Covenants or to satisfie for the breach of them and not that the Obligee should take advantage of the penalty of the bond which it may be is a great sum for the breach of a Covenant whereby the Obligee is very little damnified Perjury A false Oath taken before a person that hath not authority by Law to give the party his Oath in that cause wherein he is deposed is not Perjury 21. Car. B. r. For the Oath is Coram non judice An Endictment for Perjury may be preferred against one for taking a false Oath rashly and for want of consideration although the party that took the Oath did not do it maliciously and he may be convicted thereupon but the fine ought to be more moderate where the Perjury is committed out of rashness onely then where it is committed maliciously Trin. 24. Car. B. r. For though the Law doth not tollerate offences though they be committed out of infirmity yet they have regard to the weaknest of man and will not therfore punish them so severely as offences committed upon premeditated malice to the party against whom they are committed Process and Proceedings in Law All legal Proceedings ought to take commencement by original Writ or by Endictment or by information 21. Car. B. r. Or by Latitat which is the original Process of this Court and is in the nature of an original although it doth suppose a former Writ in the case for which it is issued forth If a Cepi Corpus be returned in one Term the Defendant ought to Plead the next Term after the return so that the Plaintiff may go a tryal the same Term and so it is if the Defendant be brought into Court by a Habeas Corpus or an alias or pluries Habeas Corpus Mich. 22. Car. B. r. After the Plaintiff is non-suit he must begin his Action again and cannot proceed upon his old Declaration Mich. 22. Car. B. r. For by the non suit the cause as to that Action is determined and the parties have no day in Court After a Verdict there ought not to a repleader but the Plea is discontinued Mich. 22. Car. B. r. Where the Defendant brings a Writ of Error to reverse a Judgement given against him and hath a Supersedeas to stay Execution upon the Judgement directed to the Sheriff of that County where the Execution is to be done and yet he is taken by the Sheriff by vertue of an Execution taken out upon this Judgement upon moving of the Court they will grant him a Writ of Supersedeas to Supersede this Execution quia emanavit erronice Mich 22. Car. B. r. For such Execution ought not by Law to have issued out much less to have been executed A Latitat is called a Bill of Midlesex Mich. 22. Car. B. r. But not all Latitats but onely such as are directed to the Sheriffs of Midlesex as I conceive Where the Defendant did tender unto the Plaintiff the moneys for which the Action is afterwards brought against him before the Action was brought and the Plaintiff refuseth them and will notwithing sue the Defendant for them upon a motion and making this appear to the Court the Court will order the money to be brought into the Court and will stay the Plaintiffs Proceedings Trin. 23. Car. B. r. For the Court will not countenance any one to sue another who may have right done to him without suit for this were to encourage men to be vexatious The continuances of Processes in inferior Courts ought to set forth the manner of the continuances and not to express them generally Trin. 24. Car. B. r. The Proceedings in inferior Courts are not so regular and formal as the Proceedings are in the Courts at Westminster but are entred only in short notes Pasc 24. Car. B. r. Pasc 1648. B. S. If one be arrested by Process of this Court and be thereupon in Custody and the Plaintiff do not declare against him in three Terms after the Defendant is by the rules of the Court to go out upon common Bail Trin. 24. Car. B. r. For the Court will presume the cause of Action is not very great because it is so long before he declares and they will not compell him to put in special Bail but where it appears the cause requires it The continuances in the Process of this Court are not entred untill the Judgement given in the
it is a good Amercement but if it be grounded upon a Presentment which is absolutely void the Americement is also void Mich. 24. Car. B. r. Assignement The Assigning of the general Error upon a Writ of Error brought to reverse a judgement is to say that the Declaration is insufficient that judgement is given for the Plaintiff whereas it should have been given for the Defendant c. and it is not shewed for what reason it is so 21. Car. B. r. If one bring an Action of Debt upon an Obligation that was given for performance of Covenants upon supposition of breach of the Covenants he must Assign but one breach in that Action Trin. 22. Car. B. r. otherwise the Desendant cannot justifie or take Issue A Statute Merchant or Staple cannot be Assigned over to another Mich. 22. Car. B. r. If Lessee for yeers Assign all his Term to come in his Lease over unto another he cannot reserve a Rent for if he do such reservation is not good because the Lesse hath no interest in the thing by reason of which the Rent reserved should be paid Pasc 24. Car. B. r. 21. Ap. 1648. In the Case of one Leach and Davy Averment Where a Statute is recited there one may not Aver that there is no such Record for generally an Averment as this is doth not lie against a Record For a Record is a thing of a solemne and high nature but an Averment is but the Allegation of the party 21. Car. B. r. One may not Aver a thing contrary to the Condition of an Obligation no more then he may against a Record for the Condition is part of the Deed which shall be supposed to he made upon good deliberation and before Witnesses and not be contradicted by a bare Averment 7. No. 1650. B. S It was said by the Court that if one assume upon himself to do a future act and an Issue is joyned upon this promise whether he hath done this thing or no the party needeth not to Aver that he hath done it for the doing or not doing of it is Traversable and the Plaintiffe might have taken advantage upon the Defendants Plea if it was not true Avowry If one make an Avowry for two causes and can maintain his Avowry but for one of them yet it is a good Avowry 21. Car. B. r. One Avowry may be made upon two several titles of land though the Avowry is but for one Rent 6. Feb. 1650. Adjournment The Court is Adjourned by the Cryer of the Court after he hath made Oyes three times and the substance of the Adjournment is to give licence to all parties that have any thing to do in the Court to forbear their attendance and to take their ease till such a time precisely named and then to attend in Court again Every last day of the Term and every Eve of a day which is not dies iuridicus or a Law day wherof there is two such dayes in Mich. Term viz. all Saints and all Souls day and one a peece in Hillary Term Easter Term and Trinity Term viz. the day of the purification of our Lady in Hillary Term Ascension day in Easter Term and Saint John the Baptists day in Trinity Term the Court is Adjourmed and before the Statute for the proceedings of the Law in English it used to be done first in English and then in French two several times sitting the Court towards the latter end of the day a good space of time being between the first and second pronouncing of the Adjournment but since the Statute the Court is onely Adjourned in English A Jury which doth not appear full cannot be Adjourned for such a Jury is not accompted a Jury Hill 22. Car. B. r. The first Adjournment of the Court is about eleven of the clock and the last immediately before the rising of the Court. Administration The mother ought to have the Administration of the Goods and Chattels of her child before a son or a brother or a sister 22. Car. B. r. Trin. Where the payment of money would not be for the advantage of the Testator there the not paying of it cannot be pleaded to be to the retarding of the Administration of his Goods and Chattels Mich. 22. Car. B. r. All Actions which an Administrator can have is given unto him by several Statutes Mich. 22. Car. B. r. Where an Administration is granted by such a jurisdiction as the Law takes notice of it is not necessary to shew that the Letters of Administration were granted by the Ordinary of such a place but where the Law takes no notice of the jurisdiction of that Court where the Administration was granted the Letters of Administration must be so pleaded viz. per loci illius Ordinarium Mich 22. Car. B. r. Letters of Administration may be revoked by a Revocation without a seal Mich. 22. Car. B. r. The Ordinary ought not to repeal Letters of Administration which he hath duly granted but if they be unduly granted viz. to such a person who by Law ought not to have them he may revoke them Pasc 23. Car. B. r. One of the half blood is in as equal a degree of kindred to the Intestate to have Letters of Administration granted unto him as one of the whole blood is Mich. 23. Car. B. r. An Indebitatus Assumpsit doth not lye generally against an Administrator Hill 23. Car. B. r. Letters of Administration granted per Carolum Regem debito more adjudged to be well granted in that form Hill 24. Car. B. r. Where the parties that require Letters of Administration from the Ordinary are of equal degree of kindred to the Intestate there it is in the discretion of the Ordinary to grant them to which of them he pleaseth Pasc Mich. 24. Car. B. r. Where one bequeaths a Legacy to one of his kindred and the residue of his goods to another Administration ought to be granted to him to whom the residue of the goods are bequeathed Mich. 24. Car. B. r. Arrest If an Action of Debt be entered in any of the Counters in London a Serjant may Arrest the party without the Sheriffs Warrant Trin. 22. Car. B. r. A Clerk of the Court ought not to be Arrested for any thing which is not criminal because he is supposed to be alwayes present in Court and must answer the Plaintiff there and therefore he that doth Arrest him is punishable by the Court Trin. 23. Car. B r. One ought not to be Arrested upon every slight suspicion of Felony but there ought to be a good ground shewed for the suspition before he is to be Arrested for Fame Life and Libertie are precious things in the eye of the Law Mich. 1649. B. Sup. One that is not priviledged from Arrest by reason of his attendance upon his business in some Court of Justice or some other wayes priviledged by some special Rule or Order of Court may be Arrested in Westminster-Hall sitting the Courts
of Latitat but the common and most usual way of proceeding is by Bill Mich. 22. Car. B. r. It hath been doubted whether the Marshals Court be a Court nor not because it is not annexed to any Corporation but unto Whitehall which is but a house and so it seems to be but a Court in Gross Mich. 22. Car. B. r. This was questioned when the Court was in being but now that Court is taken away by Stat and the question is out of doors A County Court cannot enquire of dammages arising out of the jurisdiction of it Hill 22. Car. B. r. One ought not to Sue to Bastardise an Issue in the Eclesiastical Court but the tryall lies at the Common Law Pasc 23. Car. B. r. Whether a Wife or not Wife is triable at the Common Law but whether lawfully married or not lawfully married is tryable in the Spiritual Court Pasc 23. Car. B. r. For a marriage is pleaded to be according to the Laws of the holy Church viz. the Eclesiastical Laws and therefore most proper for them to determine whether the marriage were solemnised accordingly Where the principal matter is tryable in the Spiritual Court and there is also a thing incident to this tryal which is tryable at the Common Law yet a Prohibition shall not there be granted Pasc 23. Car. B. r. Quia principale trahit ad se accessorium suum A Recognizance in the Common Pleas is entred specially but a Kecognizance in the Kings Bench is entred generally Pasc 23. Car. B r. In the Universities they hold Pleas by custome and do proceed according to the Rules of the Civil Law Pasc 23. Car. B. r. In the Court of the City of Exeter they proceed in that manner as they do in the Common Pleas but they do not so generally in other inferior Courts Pasc 23. Car. B. r. But in Norwich they proceed as they do at Exeter agreeing with the Common Pleas. The Common Pleas doth not shew at large whence the venne shall come but inferior Courts ought to shew it at large and not with an c. as the Common Pleas doth Pasc 23. Car. B. r. The Court of the publike Exchequer is a mixed Court and doth consist of Law and Equity Pasc 23. Car. B. r. The Pleas side is for matters of Law and the Chequer Chamber for matters of Equity The Court of the Kings Bench is a Court of Eyre in that County wheresoever it sits Trin. 22. Car. B. r. For it is not a fixt Court as the Common Pleas Court is but removeable The Court of the Common Councel of London is not a Court of Record but onely a Court of advice and therefore neither a Writ of Error nor an Attaint doth lie for matters done in that Court Trin 23 Car. B. r. One ought to speak against the jurisdiction of the Court by pleading to it and not by speaking in Arrest of Judgement Mich. 23. Car. B. r. For then it is too late The Palace Court is a Court in the Aire and annexed to no Corporation nor is beneficial to any society of men and from the Tunnel of White hall and twelve miles from thence in compass is called the Palace Court By Rolle Chief Justice Mich. 24. Car. B. r. Now that Court is taken away The Statute of Ieofails doth extend to inferior Courts if the Errors in their proceedings cannot be amended by the comparing of their Papers or such other matters for it is a beneficial Law and to be therefore largely expounded Pasc 24. Car. B. r. A Court cannot be held by Custome and by Letters Patents also for if one have a Court by Custome and he Purchase Letters Patents and holds the Court by them the Custome is extinguished Mich. 24. Car. B. r. This Court hath authority to reform abuses in the behaviour and carriages of all persons whatsoever throughout all England Hill 1649. Feb. 9. B. S. The Parliament cannot take way the jurisdiction of this Court without words in the Negative that is that it shall not do thus or thus 10 Feb. 1650. B. S. This Court is not to be open more then two dayes after the Term for Demurrers and Pleas and but three dayes for Issues Trin. 1651. B. S. All Courts of Record were originally the Kings Mich. 1651. B. S. Corporation If a Corporation do become so poor that it is not able to defray the publike charges which are incident unto it as it is a Corporation it is fit that the Corporation be feised unto the hands of the King Hill 21. Car. For the Corporation becomes useless and dishonourable If a Corporation doth neglect to elect such Officers as they ought to Elect by their Charter or if they make a false Election not warranted by their Charter this is a forfeiture of their Corporation Hill 21. Car. B. r. The Corporation of the City of London is to answer for all particular misdemeanors which are committed within any of the Courts of Justice within the City and for all other general misdemeanors committed within the City Trin. 22. Car. B. r. So I conceive it is of all other Corporations A Body Politick is a creature of the King created by Letters Patents Hill 22. Car. B. r. For though a Corporation may be by prescription yet it shall be intended that such a Corporation did originally derive its Authority by grant from the King Costs and Charges No Costs ought to be paid for the putting off of a tryal where no fault was in the party against whom it is moved for Costs An Attatchment lies against the party that refuseth to pay Costs which are taxed by the Master of the Office 21. Car. B. r. According to the Rule of the Court. If a Juror be withdrawn upon a tryal by the consent of the Plaintiff and the Defendant they shall pay the Costs of the Jury equally between them Trin. 22. Car. B. r. For if one of the parties alone should pay the Costs upon bringing the Issue again to be tryed by the same Jury as the course is so to do it would be a sufficient matter for him that did not joyn in paying the Costs to challeng the Jury for favor to him that did pay the Costs Trin. 22. Car. B. r. If upon a tryal the Plaintiff be forced to be non Suit because his witnesses did not appear he may by Action recover his Costs expended against his witnesses that did not appear Mich. 22. Car. B. r. It is at the Election of the Defendant if the Plaintiff do amend his Declaration either to accept of Costs and to plead or else to refuse Costs and to Imparle unto the next Term and not to plead Mich. 22. Car. B. r. The taxing of Costs is the Act of the Court although they be taxed by the Secondary of the Office Mich. 22. Car. B. r. For the Secondary is but the Officer of the Court and an instrument employed by the Court for such purposes and therefore the Court may
was committed in custody or did put in bail as aforesaid 21. Car B. r. If the Plaintiffs Attorney deliver a Declaration to the Defendants Attorney and after doth amend his Declaration and tenders another Copy to the Defendants Attorney viz. as he hath amended it the Defendants Attorney is not bound to receive it except the Master of the Office do order him to receive it or that the matter be moved in Court and thereupon the Court do order him to receive it Mich. 22. Car. B. r. The Plaintiff in this Court is not bound by the Law to Declare against the Defendant within three Termes next after his apparance in Court to the Plaintiffs Action but if he do not declare against him in three Termes next after the Plaintiff must then take common bail of him Mich. 22. Car. B. r. and Mich. 1650. B. S. For it shall be presumed if there had been cause for speciall bail the Plaintiff would not have been so dilatory in his proceedings and besides the Defendants imprisonment is made longer by the Plaintiffs delay and is considerable A Declaration must be certain and the Court is not to take things in it by implication and also if it be not certain the Defendant cannot make a direct answer unto it Mich. 22. Car. B. r. and Pasc 24. Car. B. r. As he ought to do The Plaintiff is to enter his Declaration in the Office and all Copies which are made of it and the record it self of the Cause ought to be directed and warranted by it 22. Car. B. r. If an Action upon the Case be brought upon an Assumpsit the Plaintiff must declare upon the whole promise made and not upon part of it else the Declaration is not good Mich. 22. Car. B. r. Where the Plaintiff doth declare upon a Will or upon Letters of Administration he ought to set forth the Probate of the Will and the Letters of Administration granted unto him in his Declaration otherwisy the Declaration is not good but the Defendant may demurre upon it Mich. 22. Car. B. r. For without shewing them they do not entitle themselves to the Action brought nor make themselves persons enabled by Law to bring the Action If a Declaration be defective in matter of form only and the Defendant doth take no exception against it but pleads to issue and a verdict is thereupon found for the Plaintiff the Defendant cannot afterwards take advantage of this defect in the Declaration for the defect is helped by the verdict but if the Declaration be insufficient in matter of substance the verdict will not help it but the Plaintiff may take advantage of the insufficiency of it after a verdict Mich. 22. Car. B. r. All matters which do lye in the cognisance of the Court ought to be set forth certainly in a Declaration but it is not necessary to set forth certainly matters of fact which are tryable by the Jury Hill 22. Car. B. r. If the Plaintiffs Attorney cannot finde the Defendants Attorney to deliver a Declaration unto him he may deliver the Declaration into the Office and that shall be accounted a good delivery of it so that if the Defendant do not plead according to the Rules of the Court judgment may be entred against him Pasc 23. Car. B. r. For it is intended that Attorneys ought to attend in the Office and there to inform themselves in the proceedings of their Clyents Causes Q. Whether if he can finde him whether he must deliver the Declaration unto him for the Court held he need not but Hodsden the Secondary held the contrary A thing that is good and warrantable to be put in a Writ is good and warrantable in a Declaration Trin. 23. B. r. For the Declaration is grounded upon and warranted by the Writ If there be words in a Declaration which have no signification the words shall be adjudged to be void words and shall not hurt the Declaration but the Declaration shall be taken as if those words were left out of the Declaration Hill 23. Car. B. r. Pasc 24. Car. B. r. A Declaration in English is not good for all pleadings in Law ought by the Statute to be in Latine Pasc 24. Car. B. r. But this is now altred by a late Statute which doth exact that all proceedings in Law shall be in English An Audita quaerela and a Scir facias are in the nature of a Declaration Pasc 24. Car. B. r. For they do set forth at large the cause of the Plaintiffs Action Declarations which are grounded upon originall Writs as all Declarations in the Court of Common Pleas are if they be faulty they cannot be amended but Declarations grounded upon a Bill as the Declarations in the Court of the Kings Bench are are amendable if they be faulty Pasc 24. Car. B. r. If a Declaration be drawn in one Terme but is not delivered to the Defendants Attorney that Terme but is delivered unto him before the first Essoine day of the next Terme after this shall be accounted for a Declaration of that Terme when it was drawn and not of that Terme when it was delivered Trin. 24. Car. B. r. For before the Essoine day the Terme as to such purposes is not said to be begun A Declaration may be filed in the Office many years after it was first drawn if it appear that it was onely the Attorneys neglect that it was not filed as it ought to have been 24. Car. B. r. 19. Apr. 1648. B. r. If bail be filed for the Defendant the Plaintiff may declare against him in any other matter besides the matter that is contained in the Writ brought by the Plaintiff against the Defendant Mich. 24. Car. B. r. The Defendants Attorney is not bound to receive a Declaration against his Clyent in the vacation time Mich. 1650. B. S. For proceedings in Law ought to be in the Term time A Declaration delivered with a Ly lo is in the language and meaning of Attorneys such a Declaration that is delivered with leave for the Defendant to emparle untill the next Term. Hill 1649. 12. Feb B. S. The words by Ly lo do mean Licentia inter loquendi which is as much as leave to emparle or to advise and speak with his Clyent to know what he should plead for him When one is arrested by a Latitat or Bill of Middlesex out of this Court he is not said to be in custody of the Marshall untill he hath put in bail to the Plaintiffs Action and the bail be filled and if from that time the Plaintiff do not declare against the Defendant in three whole Termes after which he cannot be compelled to do then he must accept of common bail and discharge the former bail Trin. 1650. B. S. The Plaintiffs Attorney is not bound to give a Copy of the Declaration against the Defendant to the Defendants Attorney 13. Novem. 1650. B. S. For the Defendants Attorney may take a Copy of it out of the
which is entire Mich. 24. Car. B. r. For this would be to divide the Judgement upon which it is grounded If the Record be not certified in due time after the Writ of Error is brought to reverse a Judgement he that hath the Judgement may take out Execution of Course without moving the Court to have leave to do it Mich. 1649. B. S. For it shall be intended that the Writ of Error is meerly brought for delay because the party doth not prosecute it and it shall be all one as if it had not been brought After a Judgement is signed there may be Execution taken out immediately upon it and it is not necessary that the Plaintiff should forbear to take out his Execution untill the Judgement be entred Mich. 1649. For it is a perfect Judgement of the Court before it is entred for the entry of it is the Act of the Clerk and not of the Court. If the Plaintiff in a Writ of Error to reverse a Judgement be non-suite yet the Defendant in the a Writ ought not to take out Execution without a Scire facias first sued out against the Plaintiff in the Writ of Error 15. Nov. 1650. B. S. Q. tamen For it seems the Plaintiff shall not bring another Writ of Error to reverse that Judgement but that such non-suite shall be peremptory unto him If a Writ of Error be brought in the Exchequer Chamber to reverse a Judgement given in this Court and the Judgement is affirmed there yet that Court cannot make out Execution upon the Judgement affirmed but it must be done in this Court where the Judgement was given 18. Nov. 1650. B. S. For the affirming of Judgement is not giving of Judgement and so it is not their Judgement Notwithstanding the late Statute that enacted that a Writ of Error should be no Supersedeas to stay Execution this Court will not grant out Execution upon a Judgement given here if the Record be removed by a Writ of Error into the Exchequer Chamber Nor will they grant a Supersedeas 10. Feb. 1650. B. S. In Needler and Guests Case for it is doubtful whether the Statute do extend to Writs of Error brought in the Exchequer Chamber or not because that it is not cemmonly brought If an Execution be returned and filed the party can never have another Execution upon that Judgement upon which the Execution was grounded but if it be not returned and filed he may have another Execution 10. Feb. 1650. B. S. For the returning and filing it makes it to be an Execution executed but before it was returned and filed it was but an Execution executory or in fieri If one have a Judgement given for him and he doth afterwards bring an Action of Debt upon this Judgement but doth not give any Declaration unto the Defendant the Plaintiff may at any time within the space of one yeer next after the Judgement given for him take out Execution upon his Judgement 1652 B. S. For the bringing of an Action of Debt doth not take away his Judgement and his not prosecuting of his Action of Debt doth presume he will waive that Action and resort to his Execution upon the Judgement Elegit Upon a testatum an Elegit doth lye into the principality of Wales or into the County Palatine of Chester Hill 22. Car. B. r. Essoigne The Essoigne Roll in the Court of the Common Pleas is a Record of the Court and doth remain in the Custody of the Clerk of the Essiogns Pasc 23. Car. B. r. If a Declaration be delivered to the Defendant after the Essoigne day the Defendant is not bound to plead that Term but may Emparle unto the next Term. 3. July 1650. B. S. For it is accounted for a Declaration of that Term and not of the precedent Term. Exception The Councel at the Bar ought to take all their Exceptions to the Record at one time or at least before the Court have delivered any opinion in the cause Pasc 23. Car. B. r. For the Court is not bound to hear any afterwards for this would hinder dispatch of business A Negative expression may be taken to inure to the same intent as an Exception doth Trin. 23. Car. B. r. Exceptio in non exceptis firmat regulam Estate No Estate can be limited to commence after a Fee simple determined because a Fee simple is the largest Estate that can be and shall not be supposed to have a possibility to have an end or determination Trin. 23. Car. B. r. Such an Estate which is not settled at the time of the making of it but both depend as to the being of it upon another estate which is not certain but may either take effect or not take effect is a contingent Estate Trin. 23. Car. B. r. Because it depends upon an incertainty and may be or not be according to the several event of things Enrollment An Enrollment of a Deed is either an Enrollment of it by the Common Law or an Enrollment of it according to the Statute of Enrollments Trin. 23. Car. B. r. If a Deed be Enrolled by the Statute and the Enrollement of that Deed is to be pleaded it must be pleaded precisely that it was Enrolled according to the Statute Trin. 23. Car. B. r. That the plea may be certain The Enrolling of a Deed doth not make the Deed to be a Record but by the Enrollment it doth only become a Deed Recorded Mich. 23. Car. B. r. For there is difference between matter of Record and a thing Recorded to be kept in memory If an Issue be whether Enrollment or not Enrollment this issue is tryable by a Jury and not by the Enrollment because this issue is mixed with matter of Fact Mich. 23. Car. B. r. Before the 20 year of Q. Eliz. it was not used to Endorse the Enrollments of Deeds upon the back of them as it is now used to be done Mich. 23. Car. B. r. An Enrollment of a Deed ought to be made in Parchment and Recorded in Court Pasc 24. Car. B. r. If the Inrollment of a Deed be lost yet the Enrollment is good evidence if it can be proved to a Jury by circumstances that there it was an Enrollment Pasc 24. Car. B. r. The Enrollement of a Deed is a sufficient proof of the Deed it self upon a tryal Mich. 1650. B. S. For every Deed before it is Enrolled is to be acknowledged to be the Deed of the party If Lands be conveyed in a Deed for mony onely then that Deed must be Enrolled else the Lands will not pass by the Deed but if Lands be conveyed in a Deed in consideration of money paid and also in consideration of natural love and affection there it is not necessary to Enroll the Deed but the Lands will pass though the Deed be not Enrolled 5. Feb. 1649. Hill B. S. Escape If the Sheriff suffer one taken by him in Execution to Escape the party at whose Suite he was taken in Execution
Mich. 22. Car. B. r. For the Law doth not favor the poor to do injury to others but to help them to recover their right If one that doth doth sue in forma pauperis be non-suite at the tryal he must pay costs to the Defendant or else be whipped Pasc 1652. B. S. For the Law will Judge he had no cause of Action and therefore he must make satisfaction to the Defendant for injustly vexing of him and if he cannot do it by his purse be shall do it in his person If it be proved unto the Court that one who sues in forma pauperis is a vexatious person and hath many frivolous Suites depending the Court will Dispauper him 1654. B. S. For this will be a means to make him less contentious Rolle Chief Justice said That he did not use to admit any one generally to sue in Forma pauperis but onely to sue so in one Cause by vertue of that admittance 1654. B. S. Forfeiture If one take a wife that is Seised of Gavel-kind Lands and she dyeth without issue by her husband her husband shall be Tenant by the curtesie of half of the Lands so long as he shall live unmarried but if he marry again he shall Forfeit his estate in the Lands Mich 22. Car. B. r. This is by the custome of Kent but by the same custome if he had issue by his wife then he shall be Tenant by the curtesie of all the Lands his wife was seised of and although he do marry again he shall not Forfeite his estate Mich. 22. Car. Q. Whether in the former Case he shall forfeit his Tenancy by the courtesie if he do live incontinently If a Lease be so made that it is to be Forfeited if the Rent reserved in the Lease be not paid as the Lease doth provide although the Rent be not paid accordingly yet there is no Forfeiture to be taken if there was not an actual and Legal demand of the Rent made by the Lessor Mich. 23. Car. B. r. For the Law doth not favor defeating of estates If a Copy-holder do deny to pay unto the Lord the fine which is ascertained due unto him by the Copy-holder or do refuse to appear at his Lords Court and to do his Suite there this is a Forfeiture of his Copy-hold estate Trin. 24. Car. B. r. For he holds his Copy-hold of the Lord upon these conditions If a Copy-holder do let his Copy-hold unto another for years and the Lessee do sell the Timber growing upon the Copy-hold yet this is not a Forfeiture of the Copy-hold estate 6. Nov. 1650. B. S. Franchise Nor Franchise shall be allowed in any case where the Franchise doth fail to administer justice within the Franchise but if there be such a failer this Court by their Authority may intermeddle notwithstanding the priviledges of the Franchise to compell them to do Justice Mich. 22. Car. B. r. For priviledges are not granted to protect men in neglecting to do right or to do wrong Fees In such Cases where the Sheriff is to have Fees there he is not bound to execute his Office in returning of Writs c. untill the Fees that are due unto him be tendred unto him 22. Car. B. r. The Statute of 23. H. 5. which doth give Fees to Sheriffs doth onely extend to their executing of Writs of Execution 22. Car. B. r. There are no Fees due to the Sheriff by the Common Law by the Subject for executing his Office but the King ought to pay him his Salary Mich. 22. Car. B r. For as the people do owe Alleigance to their King so the King doth owe Justice and protection unto his people An Action of Debt doth lye for a Councellor or an Atturney for his Fees against him that retained him in this cause Mich. 22. Car. B. r. Q. Whether it lye for a Councellor If a Clyent when his business in Court is dispatched doth refuse to pay unto the Officer in Court the Fees which are due unto hâ—m for doing his business the Court will upon motion grant an Attatchment to the Officer against the Clyent to â—ave him committed untill he pay the Fees due By Rolle Chief Justice 1650. Felony Where one is doing of an unlawful act and the death of any person ensueth upon the doing of that act though the death of the party was not intended by him that did the act yet this is Felony Pasc 23. Car. B. r. If one be committed to the Goal for one Felony the Justices of the Goal delivery may enquire and try him for another Felony for which he was not committed By Bacon Justice Trin. 23. Car. B. r. It is Felony to personate a Baile By Bacon Justice Mich. 23. Car. B. r. Q. Whether the procuring of one to personate a Baile be Felony The receiving onely of stolen goods is not Felony but the receiving of them and comforting the Felon is Felony Pasc 24. Car. B. r. For he may receive them and not know them to be stolen but the comforting the Felon doth prove that he consented to the Felony If one be set upon in the High-way or other place to be robbed and he do cast away his goods with an intent to save them from the robber and the robber doth take them up and carry them away this is a robbery and Felony committed to the person of the party robbed although he took nothing from his person Mich. 1649. B. S. For the party is robbed of his goods and the thief knew them to be the parties goods and came with an intent to take them from him had he not cast them away One ought not to be arrested upon suspicion of Felony except that there be good cause shewed for the ground of this suspicion 1649. B. S. For every foolish fancy or conceit is no ground of a suspicion sufficient to arrest one for so high a crime It is Felony to take a Bill from off the File after a Verdict in the cause for which the Bill was sued forth Mich. 1649. B S. For this is embezeling of a Record The robbery of a servant of his masters money in his custody if it be in the presence of his master is robbing of the master Mich. 1649. B. r. A robbery shall be said to be done in that Hundred where the party robbed is first set upon although his goods be taken from him in another Hundred Mich. 1649. B. S. For there the robbery was begun and the peace first broken A Hundred shall not be charged for a robbery committed within it upon the Statute of Winchester in Crepulsculo or twilight that is when it is neither perfect day nor perfect night but if it be committed by day light although it be before the rising of the Sun or after the setting of it the Hundred shall be charged 31. Oct. 1650. B. S. A Hundred shall not be charged for a robbery committed within it in the night because hue and cry cannot be made in
the night for that is a time for rest 1650. B. S. If a robbery be begun in the day light but is not ended till dark night yet the Hundred where it was done is chargeable for it by the Statute of Winchester 1650. B. S. Fee simple A Feffment made of Lands to one and his Heirs Males is a Fee simple Mich. 23. Car. B. S. For it is not an estate comprised within the Statute of West 2. De donis conditionalibus False Imprisonment An Action of False Imprisonment doth lye against a Baily by the party that is Arrested by him after the Writ is returned by Warrant whereof he was Arrested Hill 23. Car. B. r. For this is all one as if he were Arrested without a Writ for by the return of the Writ the Sheriffs and Bailiffs power are at an end as to that Writ If a procedendo be unduely obtained and the party against whom it is had be thereupon taken and imprisoned an Action of False Imprisonment doth lye by the party Imprisoned against him at whose Suite he is Imprisoned Mich. 24. Car. B. r. Feoffment A Feoffment made of Lands unto a Fem Covert is a good Feoffment in Law untill the husband do disagree to it Hill 23. Car B. r. Q. If the husband do not know of the Feoffment made and after the Feoffment doth dye what the Feoffment shall operate Foundation None hath power to Found a free Chappel but the King Hill 23. Car. B. r. For it is as much as to create a new Tenure The Foundation of a thing may alter the Law as touching that thing Hill 23. Car. B. r. Fiction of Law The Law ought not to be satisfied with Fictions where it may be really satisfied Pasc 24. Car. B. r. Yet in some Cases Fictions of Law are necessary and to be allowed Gavel-kinde IF one take to Wife a Woman Seised of Gavel-kind Lands and the Wife dye without having had any issue of her body by her husband yet the husband shall be Tenant by the courtesie of half of the Lands during the time he continues unmaryed But if he marry he shall forfeit his Tenancy by the courtesie But if he had issue by the Wife if the Wife dye he shall be Tenant by the courtesie of the whole Land and although he do marry he shall not forfeit his Tenancy by the curtesie Mich. 22. Car. B. r. This is by the custome of Kent Guardian A Gardian of an Infant may acknowledge satisfaction upon Record for a Debt which he hath recovered at Law for the Infant Trin. 23. Car. B. r. But it must be a Guardian that is Assigned by the Court to sue for the Insant The Court will Assigne a Gardian to an Infant to sue for him if the Infant do come into Court and desire it of the Court and name the party he desires to have for his Guardian and produce him in Court Trin. 24. Car. B. r. Good Behaviour If one do affront any Court of Justice this is a good cause to bind the party to his Good Behaviour Pasc 24. Car. B. r. For the affronting of justice is a publike misdemeanor and not a private although it be done but to the person of one man as to the Judge of a Court a Justice of peace c. He that doth upon Articles sworne in Court desire the party against whom the Articles are sworne may be bound thereupon to the Good behaviour must express some speciall matter in those Articles for which he ought to be bound to the good behaviour For if the Articles be only generall the good behaviour is not to be granted upon them Mich. 22 Car. B. r. For a generall accusation is no accusation for the incertainty of it Perjury is not an offence for which the party perjured may be bound to the Good behaviour Mich. 22. Car. B. r. But the party may be endicted for it and fined if he be thereupon convicted One was bound to his Good behaviour for affrighting people in the night in their houses by shooting off of Muskets and for the assaulting of one going in the high way Mich. 22 Car. B. r. A woman that is a common scold may be bound unto the Good behaviour Mich. 22. Car. B. r. For she is a common disturber of the publique peace The Good behaviour was granted against one upon an Article sworne against him that he had maliciously pulled down a piece of anothers house Hill 22. Car. B. r. A Justice of Peace ought not to binde any person to the Good behaviour upon a generall accusation made against the party Pasc 23. Car. B. r. One was bound to his Good behaviour for stopping of a Constable from making pursuit after a felon Trin. 23. Car. B. r. For this is a publike offence against the Common-wealth The Good behaviour is not to be granted against one for speaking of words only against one person but it may be granted against one for speaking of words against divers persons at severall times Hill 23. Car. B. r. For that is a generall misbehaviour The Good behaviour was granted against one upon an Article sworne and read against him that he said that he would burn down another mans house Hill 1649. B. S. Heire THe word Heir is nomen collectivum and extends unto all Heirs Trin. 23. Car. B. r. The Heir is favoured at the Common Law for at the Common Law the Ancestor could not convey away his Lands from his Heir at Law upon his death bed without the consent of the Heir Hill 23. Car. B. r. The Law is the preserver of Inheritances Heriott A Heriott is the fruit of a Rent-service Hill 21. Car. B. R. This is to be meant of Heriott service and not of Heriott Custome Habeas Corpus If a Prisoner appear in Court upon a retorne of a Habeas Corpus to remove him hither and there doth appear by the return that there was good cause to commit the prisoner to prison and to detain him there the Court will remand or send him back to the place where he was first committed but if upon the retorne it doth appear that there was no lawfull cause to commit him then the Court will discharge the prisoner but if it be doubtfull to the Court whether he was lawfully committed or not then the Court will bail the prisoner Hill 21. Car. B. r. Trin. 23. Car. B. r. A Habeas Corpus ad respondendum is when any one is imprisoned at the suit of another upon a legall process in the Fleet or any other prison except the Kings Bench prison and a third person would sue that prisoner in this Court and cannot because he is not in custody of the Mareschall of this Court there he may have a Habeas Corpus to remove the prisoner out of the prison where he is into this Court to answer unto his Action here 21. Car. B. r. A Habeas Corpus cum Causa doth remove the body of the party for whom
afternoon upon the last day of the Terme and so they said the Common Pleas had done Trin. 1651. B. S. This was that the Attorneys might not defer their Clyents businesses to the last of the Terme as too usually some doe Jeofailes Q If an Issue be joyned upon a collateral point if there be no place alledged whence the Venue may come this is ayded by the Statute of Jeofailes but if the Issue be not joyned upon a collateral point and there is no place alledged from whence the Venue may come it is not helped by the Statute Mich. 22. Car. B. r. Interrogatory One who is by the rule of the Court to be examined upon Interrogatories ought to attend the Master of the Office who is to examin him within four dayes after the Interrogatories are put in for him to be examined upon Mich. 22. Car. B. r. Intendment and Intentions The Law doth not punish any one for the Intention to do ill if the Intention be not put in execution except it be in the case of Treason for there Intentions if they be clearly proved by circumstances shall be punished equally as if they had been put in execution Trin. 22. Car. B. r. But this is only in high treason and is done in terrorem to deter men from that odious offence and of so high a nature being not acted against the Person of one sole person but even against the whole Kingdom which would suffer by it There shall not be Intended to be more then one Parish in a City although there be many except the contrary be shewed Trin 24. Car. B. r. For it is not of the essence or constitution of a City to consist of more Parishes then one but there may be a City that hath but one Parish in it as the City of Rochester in Kent If one be bound in an Obligation to J. S. in a certain summe of money and in the solvendum of the Bond it is not expressed unto whom the money shall be paid the Law will intend it is to be paid to the Obligee Pasc 24. Car. B. r. Because no other person is particularly named unto whom the payment should be made for it shall be intended the money was to be paid to some body and there being no person particularized to whom it should be paid it is but reasonable it should be paid to the Obligee A Court which is pleaded generally to be held secundum consuetudinem shall be intended to be held according to the Common Law but if it be pleaded to be held according to a Custome whereof the memory of man is not to the contrary it shall be adjudged to be a Court held by Custome Trin. 24. Car. B. r. For a Custome must be so particularly pleaded If the Plaintiff do plead that the Defendant did become bound unto him per Obligationem suam it shall be intended that this Obligation was sealed and delivered unto the Plaintiff Mich. 24. Car B. r. For else he did not become bound unto him by his Obligation for an Obligation that is not sealed and delivered is no Obligatien nor is the Obligee bound by it The Intent of the parties shall not be implied against the direct Rules of the Law 5. Feb. Hill 1649. B. r. For an Intent is but to be guessed at and doth not certainly appear but the Law is direct and plain and therefore it shall not be presumed the parties did mean to do any thing against Law where their intent doth not appear by express words Impossibility A thing which is Impossible in the Law is all one with a thing which is Impossible in nature 21. Car. B. r. For the Common Law is not contradictory in any thing to the Law of nature but agrees with it in all things and may be said to be the same in effect with it Impropriation An Impropriatinn cannot be made but by the Licence of the King Mich. 1649. B. Sup. And he may do it as he hath the supreme authority in all Ecclesiastical as well as civil matters within his dominions Livery and Seisin A Corporation cannot make Livery and Seisin to pass away the Freehold Lands belonging to the Corporation but they must make a Letter of Attorney to another under their Common Seal to make Livery and Seisin Mich. 23. Car. B. r. For Livery and Seisin must be made by one and not by a multitude If a Tenant for years of Land do consent that Livery and Seisin shall be made of the Land let unto him unto him that hath purchased the reversion of those Lands and it be made accordingly this is a good Livery and Seisin to make the reversion pass although that the Tenant for years do not go off from the Land at the time when the Livery and Seisin was made but was then in actual possession of it Mich. 23. Car. B. r. For his Term is not prejudiced by the Livery For only the reversion passeth and his Assent amounts but to an Attornment to him to whom the Livery is made If a Deed of Feofment be made of Land Habendum à die datus and the next day after the date of the Deed the Feoffee gives Livery and Seisin of this Land this is a good Livery and Seisin but if this Livery and Seisin were made by an Attorney Q. Quid operatur Mich. 23. Car. B. r. One may give Authority by Paroll unto another to take Livery and Seisin of Lands for him and if such Livery and Seisin be taken accordingly it is good By Rolle Chief Justice Mich. 1650. B. S. For this shews his assent to take the Lands by the Livery and Seisin and the other is but as a Conduit-pipe to convey the Land unto him Lease Lessor and Lessee If one take a Lease by Indenture for years of a ruinous house or that wanteth Reparations and do covenant in the Lease to leave the house at the end of the term in good repair heis bound to do it and an Action of Covenant doth lie for the Lessor against him if he do it 21. Car. B. r. But if he had not covenanted expresly to do it he had not been bound by Law to do it A Lease which is only voidable and not absolutely void must be made void by the Lessors re-entry but if a Lease be absolutely void there needeth no re-entry 21. Car. B. r. That is said voidable which may be made void if the Lessor will and may be continued if he please at his election it is made void by re-entry and putting out the Lessee or else it is continued by receiving the rent and thereby acknowledging him still for his Tenant Where the Freehold of Lands in question in an Action of Trespass and Ejectment is entire although these Lands be let out to several persons for years by several Leases if he whose title is concerned and doth intend to try the Title of these Lands do seal a Lease of Ejectment upon the Lands only that are
which they proceed upon in the Common Pleas. Mich 1649. B. S. Mareschall THe Mareschal of the Mareschalsea of this Court is intended to be alwayes in Court while the Court is sitting 21. Car. B. r. For it is his Office to be alwayes attending upon the Court to execute his Office in relation to the Court upon all occasions that may fall out Monstrance None shall be compelled to shew a thing in pleading which by common intendment they cannot have knowledge of 22. Car. B. r. 38. H. 6. f. 3. Motion to the Court. Monday is a special day for motions in this Court by the ancient course Mich. 22. Car. B. r. Yet motions are made upon any day as the businesses of the Court of the day will permit One ought not to move the Court for a thing against which they have delivered their opinion Trin. 22. Car. B. r. But ought to rest satisfied with the Judgement of the Court. If moneys be upon a motion ordered to be brought into the Court and are accordingly brought in they ought not to be taken out of the Court but upon a motion and rule of the Court made therein Hill 22. Car. B. r. If any thing be moved to the Court upon a Record if the Record upon which the motion is made be not in Court when the motion is made the Court will make no Rule upon such a motion Hill 22. Car. B. r. For the Court will be satisfied by the Record whether the matter of the Record upon which the motion is grounded be so as is suggested by the Councell and will not rest upon suggestions made at the bar If there be divers Rules of the Court made in a Cause and the party intends to move upon these Rules he must produce the Rule that was last made in the Cause and move upon that Pasc 23. Car. B. r. Yet it is necessary also to have all the Rules made in the Cause to satisfie the Court how the Cause stands in Court and how it hath been proceeded in from time to time and how the Rules depend upon one another One party ought not to surprise another by a motion in Court but he ought to move in such convenient time that the other party against whom the motion is made may have time to be heard and to make his Defence Pasc 23. Car. B. r. It is against the Rule of the practice of this Court to move matters in Law upon the last day of any Term except it be where the Case is peremptory or of necessity to be moved then Pasc 23. Car. B. r. Because the other Party cannot have time to make his Defence and that day is also a day appointed for motions One ought not to move the Court for a Rule for a thing to be done which may by the common Rules of practice of this Court be done without moving the Court for it much lesse ought the Court to be moved for the doing of that which is against the common Rules of practice of the Court. 24. Car. B. r. For the Court is not to be troubled with nor the Clyent put to the charge of needless motions nor of motions not to be granted and the former sort of such kinde of motions do savour of ignorance and the latter of too much presumption When a thing questionable between the parties is to be moved to the Court for the setling thereof he that intends to move it must give the adverse party timely notice of the time as near as he can when he will move it Mich. 1650. B. S. And upon what he intends to move that he may be prepared to answer the motion at the time when he moves for the quicker dispatch of businesses If a Rule of Court was grounded upon an Affidavit he that will move the Court to make the Rule void must when he moves produce the Affidavit in Court Hill 1649. 22. Feb. B. S. That the Court may be informed upon what grounds the Rule was made and whether there be cause shewed upon the motion sufficient to induce them to vacate the Rule It is against the course of practice of the Court for any person to make a motion in his own Cause 24. Maii. Pasc 1650. B. S. So said in one Thurston and Masons Case viz. for a Counseller to do it When the Court doth grant a thing to one upon a motion which was in the power of the Court either to grant it or not to grant it the party that hath his motion so granted unto him is by the rules of the Court to pay 12d to the box for it 1650. B. S. Which money is given to the prisoners of the Vpper-bench prison as it is said It is not usual to move for a Trial at the Bar upon the last day of the Term. 2. Julii 1650. B. S. Nor for the Secondary to make a Report nor for a Prehibition nor to vacate a Judgement or such like cases except both parties be in Court and are contented with the motion and prepared to speak in it The three last dayes of the Term if it be not an Issue Term is appointed to hear motions only and not other businesses except they be peremptory or upon other special occasions But if it be not an Issue Term then the two last dayes are only for the hearing of motions 30. Jan. 1650. B. S. The Issue Terms are Hillary Term and Trinity Term and they are so called because though there be Issues joyned in every Term yet not so many by much as in these Termes in regard of the Causes which are to be tried all England over at the Assizes which do follow in the next Vacations after the said Terms viz. the Lent-Assizes and the Summer-Assizes as they are commonly called By Glyn Chief-Justice it is not the custome of the practice of the Common Pleas for a Serjeant at Law to move for a Clark of the Court and afterwards for his Clyent Mich. 1655. B. S. For it seems it is not intended there that he doth move without a Fee for a Clark of the Court and therefore if he should be so heard he would have a double motion at one time which no Court doth allow Manslaughter A grand Jury may finde a Bill of Manslaughter to be Billa vera per infortunium Pasc 23. Car B. r. Mortgage If Lands be Mortgaged to one the interest in Law in these Lands is in the Mortgagee before the forfeiture of them Mich. 23. Car. B. r. For he hath purchased the Lands upon a valuable consideration as the Law will intend and though the Mortgagee may redeem them yet it is not known whether he will do it or no For it is in his power to do it or not to do it and if he do it not then the Estate is absolute in the Mortagee without any other act to be done to passe the Estate Messuage One Messuage cannot be apurtenant unto another Messuage Pasc 24. Car. B. r. For
24. Car. B. r. Else the Defendant cannot be able to know against what time he must attend to make his defence If the Plaintiff give but eight dayes Notice of a tryal unto the Defendant where by the rules of the Court he ought to have given him fourteen dayes Notice thereof yet he may enlarge the eight dayes unto fourteen dayes after the Notice of eight dayes given By Hodsden Secondary Trin. 24. Car. B. r. By the course of the Court the Defendant ought to have convenient Notice of the executing of a Writ of Enquiry of Dammages before it be executed as well upon a demurrer as a Verdict Trin. 24. Car. B. r. That he may prepare to give evidence to the Jury that are to inquire of the dammages for the mitigation of them This Court is not bound to take notice of orders made and of things which are done at the Assizes although it be by a Judge of this Court Mich. 24. Car. B. r. For the Justices of Assize c. do Act by special Commissions and not as Judges of the Common Law of any of the Courts at Westminister When either the Plaintiff or Defendant doth intend to move the Court in any matter which may prove disputable the party that thus intends to move ought to give Notice to the other party that he doth intend to move the Court in it and to express for what he will move and when Mich. 1650. B. S. That he against whom the motion is to be made may not be surprized but may have time to provide and may attend the Court to defend himself and answer the motion If the Plaintiff doth tell the Defendant that he will try his cause the first sitting in the next Term this is a good Notice given of the tryal although he do not expresely say upon what day of the moneth or week it is Mich. 1649. B. S. For the Defendant may inform himself of the precise day when that sitting will be although the Plaintiff do not express it and it may be he did not know it himself In the Common Pleas in an Action of Trespass and Ejectment if there be not Notice given to the Tenant in possession of the Land in question who is the Ejector in the Action they will not suffer the Plaintiff to proceed to a tryal upon such a Lease Mich. 1649. B. S. This I conceive is for the better recovering of Costs in case the Plaintiff be non-sute If the Plaintiff do give unto the Defendant Notice for a Tryal before Issue is joyned in the Cause this is no good Notice Hill 1649. 5. Feb. B. S. For before Issue joyned there is nothing to be tried and so this is a vain Notice and to no purpose and it may be there will never be any Issue or Tryal and so the party if he should attend upon such Notice might lose his pains and costs If the Plaintiff carry down his Cause to be tried at the Assizes and it be not then tried for want of time and doth bring it down again at the next Assizes to try it he is not bound to give the Defendant new Notice of this Tryal but if he do not bring it down to be tried at the next Assizes and yet will try it at another Assizes after that he must give the Defendant new Notice before he try it Pasc 1650. 6. Maii. B. S. For the Defendant may doubt whether he will try it or no having desisted so long from trying it and so might be surprized if he should not have new Notice of the Tryal The party that intends to move the Court in a questionable matter ought to give Notice thereof to the party against whom he intends to move or to his Attorney or Sollicitor and not to his Councel for such Notice is not good 1650. 3. Julij 1650. B. S. For the Councel is not concerned to take notice of any thing but from his Clyent It is a sufficient Notice for the Plaintiffs Attorney to tell the Defendants Attorney that he hath put in a Declaration into the Office against his Clyent and he is not bound to give him a Copy of it 13. Nov. 1650. B. S. For there he may take a Copy of it but usually they do deliver Copies to one another of the Declarations and Pleadings in their Clyents Causes If the Assizes that are to be held for that County where an Issue is to be tried do fall out to be fourteen dayes after the end of that Term wherein the Issue was joyned It is not necessary to give fourteen dayes Notice before the Trial that the Plaintiff will try his Cause at that Assizes although the Defendant do dwell above fourty miles from the place where the Assizes are to be held 22. April 1650. B. S. For the Defendant knows the Tryal by the usual course is to be at that Assizes and must attend there at his peril If one be bound by an Assumpsit to do a thing to another he to whom the promise is made must give him Notice when he will have him do it but if he promise that another person shall do it to him there he to whom the thing is to be done is not bound to give Notice to that other person when he will have it done 13. May. 1651. Pasc B. r. For it may be he may not know that other person and there is no privity of Contract between them two as there is betwixt the other two After a ne recipiatur is entred into the Judges Book so that the Cause cannot be tried at that time if the Plaintiff will try his Cause afterwards at another time according to fair practice he ought to give the Defendant new Notice before his Tryal but in strictness of practice he is not bound to give new Notice of it for the first Notice is to serve for all that Term and a ne recipiatur serves only to hinder the Tryal for that day whereon it was set down in the Judges Book to be tried Trin. 1651. B. S. This is to be understood of Causes that are to be tried by the Judges every Term and some dayes after the Term in London and Middlesex and not of Causes to be tried at the Assizes One is not bound to give Notice to another of a Rule of Court made against him except part of the Rule be that Notice shall be given unto him of the Rule Trin. 1651. B. S. For it is intended that his Attorney was in Court when it was made and that he did take notice of it or else that there needs no Notice in the Case because that the party ought to have done that which he is ordered to do without a special Rule made in the Case If a Cause be ready for Tryal and Notice is thereupon given of the Trial and afterwards the Cause is put to a reference and doth depend two or three Terms under reference and being not determined the Plaintiff intends to proceed to
a Trial there he must give the Defendant new Notice but if such Trial be to be the next Term after the reference it is not necessary to give new Notice of it for it may be tried by proviso Trin. 1652. B. S. If one give Notice of a Trial to the Defendant and yet doth not try his Cause at the day appointed but do defer his Trial for longer time than one Term after If after that he will try it he must give a whole Terms Notice before his Trial but if he try it the next Term after there needs no new notice For if the Plaintiff try it not than the Defendant may try it by proviso Trin. 1652. B. S. If an Action be laid in London and the Defendant do live fifty miles off the Plaintiff by the Rules of the Court ought to give the Defendant fourteen dayes Notice of the Trial before he proceed to it By Rolle Chief Justice In regard of the distance of place it is fit he should have time for his travel and to prepare for his Defence If the Defendant will try the Cause by proviso he ought to give the Plaintiff due Notice that he will try it and may not take advantage of the Notice formerly given by the Plaintiff 1654. B. S. Because it lies in the Election of the Defendant either to try the Cause by proviso or not to try it And the Plaintiff cannot presume he will try it being Defendant in the Action except the Defendant give him Notice that he will try it If one give Notice to another that he will move the Court in one thing and tell him in what and at the time he moves the Court in another matter and not in that whereof he gave Notice that he would move the Court in This is not good Notice of the motion but the Court will give the partie further time to answer the motion By Rolle Chief Justice For by such deceitfull Notice the party concerned cannot prepare to answer the motion Notice given to the party concerned by the Councel in the cause that he intends to move the Court against him at such a time is not to be taken by the Court for good Notice upon the bare averment of the Councel at the Barre that he gave such Notice but if the Councel will make Affidavit in writing that he gave such Notice the Court will allow it This Court is not bound ex officio to take notice of private Orders made by the Councel of State By Rolle Chief Justice For they are matters but of particular concernment and not matters of Law or publique businesses whereof as Judges they are to take Notice Notice given in the night of a robbery by the party robbed with an intent that Hue and Cry should be made after the Fellons is good Notice according to the Statute if it be given in convenient time after the robbery was done By Rolle Chief Justice It is not necessary to give Notice of a robbery to the Vill that is next within the Hundred where the robbery was done and unto that place where it was done For if the next Vill be out of the Hundred yet Notice given there is good Notice according to the Statute of Winchester Non omittas If the Bailiff of a Liberty do not retorn a Warrant made upon a Latitat out of this Court to arrest one within the Liberty directed unto him the party that is prejudiced by his not making a retorn of it may by the course of this Court have a Writ called a Non omittas directed to the Sheriff of the County in which the Liberty lies commanding him to enter into the Liberty and to make Execution of the Writ viz. the Latitat 21. Car. B. r. For Liberties must not be priviledged to hinder or delay the Execution of Justice and if they or their Ministers do neglect their duties herein this Court may intermeddle notwithstanding their priviledges to put the process of this Court in Execution that the Law may receive no obstruction by them Negative preignans A Negative preignans is when two matters are put in Issue in one plea. Hill 23. Car. B. r. And this makes the plea to be naught because the Plaintiff cannot tell in which of these matters to joyn Issue with the Defendant for the incertainty upon which of the matters the Plaintiff doth insist upon Oath OFficers of Justice are by the Common Law bound to take an Oath for their due Execution of Justice and if they refuse to take such an Oath they may be imprisoned for refusing to take it Trin. 22. Car. B. r. So carefull is the Law to have Justice done to all parties One that is to testifie on the behalf of the King upon an arraignment of a Felon cannot be examined upon his Oath for the prisoner against the King but he may be examined without giving him his Oath Mich. 22. Car. B. r. He is suffered to give his testimony for the prisoner against the King and without his Oath in favour of life The Court will rather believe the Oath of the Plaintiff than the Oath of the Defendant if there be Oath against Oath because it is supposed that the Plaintiff hath wrong done him and that the Defendant is the wrong doer and may therefore be rather supposed to swear falsly to protect himself from the Law than the Plaintiff that is forced to flie to the Law to obtain his right Pasc 23. Car. B. r. One that is to be a Witness in a Cause may have two Oaths given him one to speak the truth to such things as the Court shall ask him concerning himself and the other to give testimony in the Cause in which he is produced as a Witness The former is called an Oath upon a Voyre dire Pasc 23. Car. B. r. Obligation One ought not to be admitted to be a Witness to prove an Obligation or other Deed which he takes in the name of another 21. Car. B. r. For if he might be so admitted this would be upon the matter to suffer him to be a Witness to prove a Bond or Deed made to himself which is not reasonable If a Sheriff take a Bond of the Defendant for his apparance to the Action upon which he is arrested by the Sheriff at the Plaintiffs sute and the Defendant doth not appear accordingly and according to the Condition of the Bond the Plaintiff may by the leave of the Sheriff sue this Bond in the Sheriffs name and proceed to Judgement upon it against the Defendant but without his leave it cannot be done but it is at the election of the Plaintiff to sue this Bond or not for he may proceed if he please by amercements upon the Sheriff untill he make a retorn of the Writ directed unto him Hill 22. Car. B. r. For the Bond is only to save the Sheriff harmless against what may befall him if the Defendant do not appear and doth no way concern the
Plaintiff but by agreement made afterwards betwixt the Plaintiff and him of which the Court doth not take notice except they be moved in it An Obligation cannot be delivered as an escroe unto the Obligee himself but it may be delivered to another to the use of the Obligee as an escroe Trin. 24. Car. B. r. For the very delivery of it to the Obligee himself and his receiving it makes it work as a Deed in the very instant of the delivery of it according to the effect of the Deed but being delivered to another to the use of the Obligee it cannot operate so because he is no party to the Deed nor can take any thing by it and doth but only take it as an escree and as an instrument to deliver it to the Obligee at such time and in such manner as the Obligor shall direct and if he deliver it otherwise the Obligor may plead non est factum if he be sued upon it by the Obligee If one be bound unto J. S. in an Obligation of twenty pound to be paid unto J. D. this Obligation is not good Trin. 24 Car. B. r. For to J. S. it cannot be good for the Obligor is not bound to pay him the twenty pound in which he is bound for the solvendum is to J. D. and to J. D. it cannot be good for if he pay him not the twenty pound he cannot sue for it For the Obligor is not bound unto him by the Obligation and so the Obligation is void to all intents If money be not paid according to the Condition of an Obligation the Obligation doth thereby become a single Obligation that is it shall be taken as an Obligation without a Condition for the benefit of the Condition which the Obligor might have taken advantage of by the paiment of the money according to the Condition is lost by the not paying of it and so the Obligation rests in force as if it had no Condition Mich. 24. Car. B. r. An Obligation is a good Obligation although it do want a date Hill 1649. B. S. 8. Feb. For the date is not of the essence of the Deed but the sealing and delivery of it For if the sealing and delivery of it be proved although the time precisely of the doing it cannot be proved yet it is a good Deed. Orders This Court may quash any Orders made at any publick or private Sessions of the Peace or made by any other Commissioners if they see good cause for it Mich. 22. Car. B. r. For this Court is the superintendent Court over all other Courts and is to regulate their proceedings where they be irregular and illegal If a Cause be put in the paper of Causes that it may be spoken unto in matter of Law by the Order of the Court and the Attorney in the Cause doth not attend the Cause at the day the Cause is to be put out of the paper and not to be put in again that Term. Mich. 22. Car. B. r. Except very good cause be shewed to the contrary This Court doth not take notice of Orders made in Chancery Trin. 23. Car. B. r. Nor in any other Court as to be bound by them but will proceed according to the Rules and Orders of this Court By the Orders of this Court the three last dayes of the Term the Judges have no paper of Causes either of Records or Conciliums delivered unto them for those three dayes are to hear motions Trin. 23. Car. B. r. That is the three last dayes of Hillary Term and Trinity Term which are Issue Terms for the two last dayes of Michaelmas Term and of Easter Term only are for motions Tuesdayes Thursdayes and Saturdayes are the proper dayes by the Orders of this Court to hear matters of Law Mich. 1649. B. S. But chiefly Saturday Outlawry The Court will not reverse an Outlawry although both the parties consent to it viz. the party outlawed and the party at whose sute he is outlawed except there be errour assigned in the Outlawry Mich. 22. Car. B. r. For matters of Record are not to be destroyed without sufficient cause and the Outlawry also doth concern the King as well as the Parties An Outlawry which is grounded upon an Endictment grounded upon the Statute against forcible entries preferred against divers persons may be reversed as to some of the parties endicted and yet may stand good as to others that are outlawed upon the same endictment Hill 22. Car. B. r. For the Outlawries against them are several and not entire and the proceedings to the Outlawry may be good as to the Outlawing of some of them and the proceedings to the Outlawry as to others may not be good An Outlawry that doth not express that the party outlawed was proclaimed as he ought to be is not good but may be reversed Trin. 23. Car. B. r. If the Defendant do not appear upon the quinto exactus made by the Sheriff of the County at his County-Court in the County where the Defendant doth dwell then he is outlawed by the Coroner Pasc 1650 22. Maij. B. S. For the Coroner is the chief Officer in criminal matters in the County Office and Officer The chief Cryer of this Court hath his Office by Patent from the King and this Office may be granted in resersion Pasc 23. Car. B. r. For the Court is the Kings own proper Court where himself used to sit in person and it is for his honour to have such Officers by Patent who are upon the matter to attend his own Person and not to leave them to be disposed of by others and it may be granted in reversion because it is but a ministerial place The Office of Assurance cannot assure the life of one that hath an Office for his life as it may do the life of one that is at Sea or beyond Seas and imployed in Merchants affairs Mich. 1649. B. S. For they have no power to assure the life of any but in case of Merchants affairs by the Statute which gave them their power which is the Statute of 43. Eliz. Oyer of a Deed c. If one be sued upon an Obligation he may pray Oyer of the Obligation and before he hath Oyer of it he is not bound to plead to the Plaintiffs Declaration yet he may plead without Oyer of it if he please But if he do plead without Oyer of it he cannot after his pleading wave his plea and demand Oyer of it 18. April 1650. B. r. To demand Oyer of the Obligation is not only for the Defendants Attorney to desire the Plaintiffs Attorney to reads the Obligation unto him as the word Oyer seems only to import or to have a sight of it but that he may have a Copy of it that his Clyent may consider by it what to plead to the Action Plaint THe Plaint is the Cause which the Plaintiff doth express in the Writ for which he doth complain to the King and for
cause proceeded in be entred Mich. 1649. B. r. For not till then the Record is made perfect An appearance will help a miscontinuance of Process 9. Nov. 1650. B. S. The bringing of a Writ of Error is a continuance of the Action 10 Feb. 1650. B. S. Hill For the Action is not determined by the Judgement if a Writ of Error be brought but is still depending for the Judgment it may be may be reversed If a cause to be spoken to in Court be entred into the paper of causes for the day in the Office although it be not put into the paper of the causes of the day delivered to the Judges yet the Court will proceed in them if they be enformed of it Trin. 1651. B. S. For it was but a mistake of the Clerk and it may be Councel on both sides are entertained for that day to speak in it Upon a Verdict or a Demurrer sometimes the continuances in the cause are not entred until after a Writ of Error be brought Pasc 1652. B. S. Miscontinuance of Process is where one Process is used for another Process viz. a wrong Process in stead of a right Trin. 1652. B. S. Provisoe A Provisoe in a Deed which sounds in Covenant is Collateral 21. Car. B. r. That is a Provisoe which is so penned that it implies a Covenant in it for there is difference betwixt a Provisoe and a Covenant of a Deed for a Provisoe doth often go by way of destruction of the whole Deed or some part of it or of the estate created by it but a Covenant alwayes stands with the Deed and onely an Action lyes upon the breach of it A tryal by Provisoe was ordained by the Statute to the end that the Defendant might free himself of suits brought against him by trying the issue depending betwixt him and the Plaintiff in case the Plaintiff doth not try it as he ought which he may do the next Term after the Plaintiff should have tryed it or at any time after that when he pleaseth Hill 22. Car. B. r. If a Provisoe in a Deed be insisted upon at a tryal to destroy the Deed in which it is there must be punctuall proof that the thing provided to be done or not done was done or was not done according as the Provisoe directeth Mich. 1650. B. S. For the Law doth not favour the destruction of Deeds or estates but doth favour the supporting and maintenance thereof as much as may stand with the rules of Justice Pledge The Plaintiffs Pledges that he shall prosecute 〈◊〉 suite may be entred at any time pending the suit Trin. 22. Car. B. r. For the putting in of Pledges is now but a meer formal thing but what was the ancient use of putting them in Q. Pardon A general Pardon doth discharge not onely the punishment which was to have been inflicted upon the person of him that did commit the offence Pardoned but also the guilt of the offence it self Mich. 22. Car. B. r. A Pardon may dispence with the burning in the hand of a person that is convicted for Felony but without a Pardon it may not b◠dispensed withall Pasc 23. Car. B. r. The words Pardonavit remisit relaxavit in a Charter of Pardon granted to one for Felony do not restore unto him the goods which he forfeited to the King by his Felony but the word restituit in the Pardon doth restore him to his goods Trin. 23 Car. B. r. For the former words go but only to the Pardoning of the offence but the latter to restoring to the estate forfeited by the Felony A Pardon for treason cannot be pleaded untill the prisoner be charged with the Endictment for the offence committed Pasc 24. Car. B. r. For before he is charged by the Endictment it doth not appear to the Court that he is the person that is pardoned by the Pardon If one have a Charter of Pardon for Felony committed by him the Court ought to allow it upon the prayer of the party that hath it but he must produce it at the Bar and pray upon his knees that it may be allowed 13. Nov. 1650. B. S. And so it was then done in one Goffs case A general Pardon doth Pardon publicke offences done to the Commonwealth but it doth not Pardon private injuries done to particular persons Pasc 1652. B. S. Postea The Postea is the issue or record engrossed in parchment upon which a tryal is had and which is afterwards to be entred in the roll of the Court where the Action tryed was brought when the party enters his Judgement upon the Verdict had at the tryall Mich. 22. Car. B. r. It is called the Postea from the word Postea which begins that which is entred by a Clerk of Assize upon the record that was tryed after the tryal setting forth that Postea that is afterwards after the issue joyned at such a day and place and before such a Judge the Plaintiff and Defendant came c. to hear Judgment that is to try the cause and hear the Verdict and so sets forth the tryal particularly and the Verdict The Court may stay the Postea not suffering the party to enter Judgement upon his Verdict if they find cause to do it Mich. 22. Car. B. r. viz. For undue proceedings in the tryal The Defendant hath four dayes by the rules of the Court to speak in arrest of Judgement after the Postea is brought into the Court and if the party for whom the Verdict passed will not bring it in upon notice given to him by the other party that he intends to move in arrest of Judgement the Court upon a motion setting forth this matter will order Judgement to be stayed untill four dayes after it shall be brought in There is no general rule of Court for the Clerk of the Assize to bring in the Posteas into this Court by a percise time but if he be negligent and return the◠not in convenient time the parties grieved may more the Court and thereupon the Court will make a rule that he bring them in speedily Mich. 22. Car. B. r. If the Clerk of the Assize have mistaken himself in drawing up of the Postea he may amend it by his notes which he took and drew it up by although it be returned Trin. 24. Car. B. r. But it must be before it be filed for then it is a record of this Court After the Postea is entred upon record and the record hath been read in Court in order to the speaking to some matter in Law in it the Atturney in the cause ought not to have the Postea any longer in his custody but it ought to remain in Court Trin. 24. Car. B. r. The Defendant may give rules in the Office for the Plaintiff to bring in the Postea and if he will not do it he shall be non-suite 18. Nov. 1650. B. S. For though he have a Verdict yet he hath no Judgement and so his
before a Deed can be enrolled the party to the Deed doth acknowledge it before a master of the Chancery that the Deed to be enrolled is his Deed if the Deed be to be enrolled there or before a Judge of that Court where it is enrolled which is a sufficient authority to enroll it and to give credit to the Deed. A provisoe in a Deed which provisoe goes in destruction of the estate passed by the Deed must be punctually proved Mich. 1649. B. S. For the Law doth not favour things which sound in destruction of estates but such things as tend to the affirmance and preservation of them If a Place be named with an alias it is not necessary upon a tryal to prove both the names By Rolle Chief Justice Mich. 1650. B. S. Q Tamen For Crawley when he was Justice was of another opinion A Deed which is enrolled and is not acknowledged before a Master of the Chancery as a Deed which is enrolled act perpetuam rei memoriam and not to pass an estate may be must be Proved by Witnesses if it be given in evidence at a tryal Mich. 1649. B. S. For the acknowledging of it before the master is that which gives credit to the Deed and not the Endorsement of the Enrollment which is but the act of a Clerk in the Office A thing which is Proved to have been and continued for so long time as any one living can remember shall be presumed to have been beyond the memory of man and will be accounted a good prescription Pase 1650. B. S. 11. Maii. Because the contrary cannot be proved Plaint A Plaint is the cause which the Plaintiff doth express in the Writ for which he complains to the King against the Defendant and for which he doth obtain his Writ 21. Car. For as the King denys his Writ to none if there be cause to grant it so he grants not his Writ to any without there be cause alledged for it for as the King is bound to help them to right that suffer wrong so he is bound as much as in him lies to defend his people from causeless vexation A Plaint in an inferior Court is in the nature of an original Writ Pasc 1652. B. S. For therein is briefly set forth the Plaintiffs cause of Action Poor If the Father of Children do leave the Parish where he dwelleth and there is a Grandfather of the Children to be found this Grandfather if he be able is chargeable with the keeping of the Children and not the Parish Mich. 24. Car. B. r. For the tye of Nature is a neerer tye then the Law can or doth enjoyn Presentment A Presentment taken before Commissioners of Sewers was quashed because 1. it did not appear in the Presentment by what authority the Commissioners did sit that took the Presentment And 2. because it did not appear that any of the Commissioners before whom the Presentment was taken were of the Quorum Hill 1649. B. S. As is directed by the Statute that gives them their authority Parliament The Parliament is not accounted to begin untill the first day of the sitting thereof although Writs are returned and many adjournments may be before Pasc 1650. B. S. 21. Maii. The Writs mentioned are meant the Writs directed to the Sheriffs of the several Counties and to the Cities and Borrought to Elect Members for them to serve in Parliament Presidents If there be a special cause to alter the ancient President of a Writ the Cursitors are not to keep the old form but are bound to alter it as the case requires and if they shall refuse to do it this Court will compell them to it Trin. 1650. B. S. Else it would be very mischievous to the people who by that means may have their Writs abated and be put to the trouble and charge of purchasing of new Writs by reason of their willfulness and ignorance Prisoner and Prison One that is imprisoned upon a Capias utlagatum ought to be imprisoned as strictly as he that is in prison upon an Execution Trin. 1650. B. S. 3. Julii For he that refuseth to answer the Law offends in as high if not in a higher nature then he that is condemned by the Law and is to be punished as highly It is the course of the Court when a Prisoner is delivered over by this Court unto the Marshal of the Court to endorse the day of this delivery upon the back of the Writ Mich. 1650 B. r. 20. Nov. This Court may send for a Prisoner out of the Prison of the Marshal Sea without a Habeas Corpus because that Prison doth belong to this Court but they cannot send for a Prisoner out of any other Prison but by a Writ of Habeas Corpus By Rolle Chief Justice Mich. 1650. B. S. Possession If one do make an Entry into the Lands of another and that other doth notwithstanding the Entry keep the Possession of the Lands entred into with his servants and cattel the entry is no entry in Law but if the servants and cattel be put out to gain the Possession he that is put thus out of Possession if he will prove a Possession in himself after this he must prove an actual entry afterward Pasc 1650. B. S. 25. Ap. The proving of ones cattel to be upon the Land in question is not a sufficient proof that he whose cattel they were was in possession of the Land at that time when the cattel were there Pasc 1650. B. S. For the cattel might be upon the Land Dammage feasant Peremptory By the rules of the Court a Peremptory day is not to be given to the Defendant upon a Judgement given against him upon a non sum informatus at the first reading of the record but the Court will appoint a day to hear Councel Mich. 22. Car. B. r. If the Defendant do tender an issue in abatement of the Writ and the Plaintiff doth Demur upon the issue and upon arguing of the Demurrer the issue is over-ruled that is is adjudged by the Court to be no good issue the Defendant is onely to answer over that is to tender a better issue for the over-ruling of the former was not Peremptory to him Trin. 24. Car. B. r. But otherwise it is where such an issue and demurrer is in bar of the Action for there the merits of the cause is put upon it but in the former the validity of the Writ is onely in question and whether the defendant is thereby compellable to plead to the Plaintiff or not If a Peremptory be put off by the Court the party that will take advantage by the putting of it off ought to enter the rule of Court that was made for the putting of it off Trin. 1651. B. S. A Peremptery is when a business is by a rule of Court to be spoken unto at a precise day and if it cannot be spoken unto then by reason of other businesses of the Court the Court in such
of Error if he do proceed and take out execution upon the Judgment it is no contempt to the court Mich. 1649. B. S. For it shall not be presumed he knew there was a Writ of Error brought yet though it be no contempt in him to take out the Execution yet the Execution shall be superseded quia improvide emanavit for by bringing of the Writ of Error the hands of the Court where the judgment was given were foreclosed from proceeding any further Replevin A Replevin ought to be certain in setting forth the number and kindes of the Cattell distrained or else it is not good because if it be incertain the Sheriff cannot tell how to make deliverance of the Cattel because he knows not particularly what the cattel are that were distrained Trin. 23 Car. B. r. Replication If the Plaintiff do Reply to a Plea in Bar which is not good by his replying to it he hath confessed it to be good Trin. 23. Car. B. r. And so it shall be now taken to be for he hath lost his advantage of demurring unto it by passing by the defects of it and replying unto it If an Action for the breach of the condition of an Obligation be brought and the Defendant do plead that he hath performed the condition the Plaintiff in his Replication must shew in what particularly the Defendant hath broken this condition Pasc 24. Car. B. r. That the Defendant may be able to give a particular answer to the breach assigned and if he do not assign a particular breach his Replication is idle for it sayes no more then what was formerly said in the Declaration Reservation If the Lessee for yeers assign over all his term to another and reserve a Rent the Reservation is void Pasc 24. Car. B. r. For by the assignment of the whole term he hath no interest in the thing let for the which he can challenge any Rent to be due Recovery A Recovery cannot destroy a thing executory which doth depend upon a contingency Pasc 24. Car. B. r. Because it was uncertain at the time of the Recovery suffered whether it would ever be or no and a Recovery will not work upon so remote and uncertain an estate If a Recovery be suffered by Baron and Fem of Lands whereof the Fem hath an estate in Fee Simple although there was no Tenant to the precipe of the Lands yet this Recovery shall be a good estople against the Baron and Fem and their Heirs but it would be otherwise if the Lands had been Entailed at the time of the Recovery By Rolle Chief Justice Mich. 1650. B. S. 8. Nov. It is not necessary for the Judge to examine a Fem Covert when she joyns with her husband to suffer a Recovery of her own Lands yet it is prudential to do it Trin. 1651. B. S. By Rolle and he said that he used to do it Release If the Defendant in an ejectione firmae will not defend the title of the Land in case the Verdict pass against the Plaintiff the Ejector may Release the dammages to the Plaintiff Hill 1649. B. S. 11. Feb. For he is the Defendant in Law although the title do not concern him and it is the others fault that he was not himself made Ejector to defend the title One is not bound to give a Release unto the Sheriff for moneys which he receives from him which he levyed for him by vertue of an Execution but he must give him a note under his hand that he hath teceived it Hill 1650. B. S. By Rolle Chief Justice Q. tamen Whether he be bound to give him such a note for the Sheriff is an Officer of the Law and upon payment of the money the Law gives him his discharge Recital and Misrecital If a Statute be Misrecited in pleading in a matter which goes to the ground of the Action which is brought upon the Statute it is not helped after a Verdict by the Statute of Jeofailes but if it be Misrecited onely in a circumstancial matter and which goes not to the ground of the Action it is helped after a Verdict by that Statute Trin. 1650. B. S. For the Statute helps onely matters mispleaded in matter of form and not matters of substance Report By the custome of the Court the Secondary ought not to make any report of any matters referred unto him by the Court upon the last day of the Term for that day is properly appointed for motions onely Trin. 1650. B. S. Reversion If one have a Reversion expectant upon a Lease for years he may make a Lease of this Reversion unto the Lessee for years for one year and after make a Release in Fee to the Lessee for years of the Reversion and by this conveyance the Reversion in Fee will pass to the Lessee Mich. 1650. B. S. Reference Matters of Fact betwixt the party in a cause depending in Court are not to be Referred to the Secondary for such matters are tryable by the Jury that is to try the cause but matters concerning the due proceedings or undue proceedings in the cause by either of the parties are properly to be Referred unto him and for him in some cases to compose the differences and in others to make his report to the Court how the matters do stand Pasc 1650. B. S. If a matter in difference betwixt the Plaintiff and the Defendant be referred to the Secondary and one of the parties will not attend at the time appointed to hear the business referred the other party may proceed in the Reference alone and get the Secondary to make his report without hearing of the other party Trin. 1651. B. S. For one party cannot compell the other to attend and therefore such References would many times take no effect for want of the presence of both parties if a report may not be made notwithstanding one of them refuseth to attend Right Lands between the high water Mark and the low water Mark do appertain to the Lord of the Manor next adjoyning of Common Right Pasc 23. Car. B. r. By Rolle Q. tamen Whether they do not rather belong to the King for it hath so been held Scire Facias ONe may have a Scire Facias to revive a Judgement upon which no Execution was taken if it be but seven years past since the Judgement was had without any motion to the Court for it and if it be under ten years since the Judgement was had a Scire Facias may be moved for to revive it at the side Bar but if it be above ten years since the Judgement was had a Scire Facias may not be had without moving the Court for it Pasc 24. Car. B. r. But the Court will not deny it if it be moved for The side Bar is a place where a rail or bar is set up neer to this Court below the Court in Westminister-hall where the Judges stand and rest themselves before the Court sits and where they put on their
is no place alleadged but an issue is joyned and the venire is de corpore comitasus and a Tryal is thereupon had this is good Tryal and there ought not to be a repleader Mich. 22. Car. B. r. For here is a good pleading and a good issue joyned and well Tryed and a repleader is to be onely where the Pleading is vicious and hath not brought the issue in question which was to have been Tryed If the Court do know that the Jury have given their Verdict against the evidence given unto them they may order a new Tryal to be in the case Mich. 22. Car. B. r. Q. Tamen For the Jury are upon their Oaths and it may be they know something of their own knowledge more then the evidence which moved them to give their Verdict so and the party against whom the Verdict is given is not without remedy for he may bring his Attaint against the Jury yet new Tryals have sometimes de facto been awardes in such oases There may be a good Tryal in a cause although the Defendants plea be ill Hill 22. Car. B. r. For the Tryal depends not upon the plea but upon the issue joyned and if there be a good issue joyned the Tryal is good what ever the plea be Where the Plaintiff will not try his cause after issue is joyned the Defendant may try it afterwards when he pleaseth Hill 22. Car. B. r. That he may free himself from the sute When the Defendants Atturney hath told the Plaintiffs Atturney what plea he will plead the Plaintiffs Atturney may give him warning for a Tryal although the issue be not made up in the cause Hill 22. Car. B. r. For after plea pleaded it is in the Plaintiffs choice whether he will reply or no for he may make up the issue when he pleaseth If a cause to be tryed be not entred into the Judges Book before whom it is to be tryed four dayes before the cause is to be tryed the Plaintiff may enter a ne receipiatur in the Judges book that it may not be entred after that to be tryed at that time if the Defendant please Hill 22. Car. B. r. If upon a Tryal to be had at the Bar the Jury be not ready at the day to try the cause the cause cannot be tryed at the Bar any other day of that Term without the consent of both parties Pasc 23. Car. B. r. For it would be too long to keep the Witnesses in Town to another day and if they should go out of Town it might be too short a time and too much trouble to bring them up again the same Term. The agitation of a cause in one Court is no cause to put off the Tryal of the same cause depending in another Court. Pasc 23. Car. B. r. For the proceedings of one Court of Law ought not to clash with the proceedings of another Court but it is not so betwixt the Courts of Law and the Chancery as it is a Court of equity The King may try his own cause in what Court he pleaseth Pasc 23. Car. B. r. By his prerogatine for they are all his Courts and it is not reasonable he should be streightned in his choice where he will proceed A local matter generally is not to be tryed in a foreign County but in the County where the cause of Action ariseth Pasc 23. Car. B. r. For there may the best knowledge of the matter be had and it is also for the greater ease of the people and less charge If one be committed to the Gaol for one Felony yet the Justices may try him for another Felony for which he was not committed Trin. 23. Car. B. r. By Bacon Justice A Decree in Chancery shall be tryed by a Jury and not by it self for it is not a Record but it is a Decree recorded Mich. 23. Car. B. r. And there is difference betwixt a Record and a thing recorded for a Record is a Judgement or other act recorded done in a Court of Record but the Chancery as it is a Court of equity is not a Court of Record but an arbitrary Court although it be a Court of Record as touching things agitated in the pettibag Office Although the Plaintiff after issue joyned and at the Assizes where he was to try his cause do enter a retraxit yet he may try the cause at the next Assizes after if he please for the retraxit doth onely import that he intends to forbear to try his cause hac vice onely and if he do not try it at the next Assizes after then the Defendant may if he will try it by provisoe and if the Defendant do not then try it by provisoe the Plaintiff may give new notice of a Tryal to the Defendant and try it at the next Assizes following Mich. 23. Car. B. r. One that is not served with process to give his testimony at a Tryal may not be examined upon a veire dire concerning any matter which concerns the Tryal Mich. 23. Car. B. r. A Tryal at the Bar ought not to be had for houses lying within the City of London Mich. 23. Car. B. r. If the Plaintiff give notice to the Defendant that he will try his cause that Term although it be not tryed at the day appointed yet he is not bound to give new notice of a Tryal if he try it any time within that Term for one notice is sufficient for the whole Term. Hill 23. Car. B. r. According to the old use of practice in this Court there ought to be but ten Tryals at the Bar in Easter Term. Pasc 24. Car. B. r. Because Tryals at the Bar are a great hindrance to other businesses which are more proper for the Court yet now they are encreased many times to donble the number If there be warning given for a Tryal and no Jury appear at the day there ought to be a new notice given if the party will try his cause at another day Pasc 24. Car. B. r. The consent of the owner of the Land to make one Ejector to try the title of the Land is good if it be not a plot betwixt him and the Ejector to oust the Lessee of the Land of his possession Mich. 24. Car. B. r. A Tryal at the Bar may not be had by the consent of the parties without leave of the Court Mich. 24. Car. B. r. For the Court is not bound Ex Officio to grant a Tryal at the Bar but it is in their discretion to grant it or not to grant it In a Tryal for substracting of tithes in an Action grounded upon the Statute of 2. Ed. 6. the Plaintiff ought first to begin with the proof of the value of the Tithes before he proceeds to shew his title to them Mich. 24. Car. B. r. It is a mis-tryal for a thing to be tryed before a Judge who hath interest in the thing in question and the request or consent of the
parties concerned in the Tryal will not help it Mich. 24. Car. B. r. For such a Tryal cannot be supposed to be indifferent for none ought to be Judge in his own cause A mis tryall is helped by the Statute of Jeofailes but not a voide Tryal to wit where there is no issue joyned to be tryed but in such cases there must be a repleader that the matter in question may be put in issue to be tryed Mich. 24 Car. B. r. The day for a Tryal ought to be entred into the Clerks book in the Office viz. the Clerk of the Papers Mich. 1649. B. S. And before it be so entred there ought not to be notice given at the Tryal Q. Tamen One that is a priviledged person in this Court ought not by reason of his priviledge onely to have a Tryal at the Bar granted unto him but there must be difficulty in the matter to be tryed or else it must be of great value Hill 1649. B. S. 4. Feb. A Tryal at the Bar ought not to be granted before the Defendant hath pleaded and issue be joyned Hill 1649. B. S. 11. Feb. 12. Feb. 1656. For before that the cause is not ready for a Tryal nor doth it appear that the parties intend to proceed to it Tryall Of latter times there hath been twenty Tryals granted to be at the Bar in Easter Term but not above Pasc 1650. B. S. 1. Maii. But anciently not above half the number Although the Defendant do go to a Tryal without sufficient notice given unto him of the Tryal and there be a Tryal accordingly this Tryal is not binding unto the Defendant but he may if he please have a new Tryal granted for want of due notice Pasc 1650. B. S. 19. Ap. For the Rules of the Court are not to be broken by the consent of the parties By the ancient practice of the Court all the Tryals at the Bar which are had in Easter Term ought to be tryed a fortnight before the end of the Term. Pasc 1650. B. S. 1. Maii. And the remainder of the Term was to be spent in other businesses more proper for the Court. In ancient times there were wont to be Tryals in Parliament by Juries but of latter times no such Tryals have been Pasc 1650 B. S. 24. Maii. The prosecutor in an information brought in this Court ought to bring the cause to a Tryal at his own costs but in an Endictment which is folely at the sute of the King he that is Endicted must bring the cause to a Tryal at his own charges Pasc 1650. B. S. 24. Maii. An information is preferred as well for the benefit of the informer as the King and therefore it is reason he should bring it to Tryal at his own charges If at a Tryal the Court do see that one of the parties is surprised but not by any fault or laches of his own but by some other casualty they may in their discretion put off the Tryal to another time untill the party surprised may be better provided for his Tryal Trin. 1650. 3. July B. S. For this is not to delay justice but to give time that clearer justice may be done In criminal causes Tryals may be at the Bar in Hillary Term and in Easter Term but not in other causes Mich. 1650. B. S. But onely in Michalemas and Easter Term. This was the old course but of late in some special cases Tryals have been granted to be at the Bar in Hillary Term and Trinity Term. The Court of Chancery will not stay a Tryal at Law by an injunction when the parties are ready for the Tryal and have expended their costs for the Tryal but after the Tryal they will grant an injunction to stay Judgement Pase 1652. B. S. If the Plaintiff in an Action of Trespass and Ejectment do bring his cause to be tryed at the Bar he cannot compell the Defendant to confess the Lease Entry and Ouster for the Tryal at the Bar was not granted in favor of the Defendant but of the Plaintiff but if the Defendant bring the cause to be tryed at the Bar there he must confess the Lease Entry and Ouster because the Tryal was granted to be at the Bar in his favor Pasc 1652. B. S. If a cause be appointed to be tryed in one Term and the Plaintiff doth not then proceed in his Tryal but rests for a year or more after if he will after so long time try the cause he must give the Defendant a whole Terms notice before his Tryal Pasc 1652. B. S. If a Tryal be had the last day of a Term Judgement cannot be entred upon that Verdict untill the next Term after By Rolle Chief Justice 1652. B. S. Nor till the four first dayes within the Term be passed for so long time hath the Defendant by the Rules of the Court to speak in arrest of Judgement It was said by Rolle Chief Justice that the City of Bristol will not bring a matter to be tryed here at the Bar no more then the City of London will 1654. B. S. If at a Tryal at the Bar in a Trespass and Ejectment the Plaintiff and the Defendant do consent that the Jury shall have a view of the Lands in question there can no Tryal proceed in the cause that Term. By Rolle Chief Justice 1654. B. S. It is not usual to grant a Tryal at the Bar the same Term it is moved for but the next Term after 1654. B. S. Yet sometimes upon special reasons it is done A voluntary Affidavit made before a Master of the Chancery is not to be given in evidence at a Tryal at the Bar. Pasc 1655. For a Master of the Chancery hath not authority to administer such an Oath and therefore if the party did swear falsly it is not perjury nor can he be endicted for it because it is Coram non judice and therefore such oaths are of little credit to be given in evidence If a Tryal be had and a Verdict thereupon given the same issue may not be tryed again by the Jury that tryed it before 1655 B. S. For it is more then probable they will give the same Verdict Traverse A Traverse ought to have an inducement to make it relate to the foregoing matter or else it is not good and formal Mich. 22. Car. B. r. If the Court shall change the venue and lay it in a County where the cause of Action did not arise the party may Traverse the County if he please and so draw the venue into the right County where the cause of Action did arise Trin. 23. Car. B. r. If one will take a Traverse to a Declaration he ought to Traverse that part of it that the doing thereof will make an end of the matter for which the Plaintiff declares and then is the Traverse good Pasc 24. Car. B. r. Where the Defendant hath given a particular answer in his Plea to all the material matters